Saturday, July 7, 2012

Freedom and the Workplace

There has been a pas de deux going on between Crooked Timber and Marginal Revolution over whether libertarianism has a coherent and morally acceptable response to the problem of employer tyranny over workers. My take is that there are a lot of complicated issues in ethical theory, but this is not one of them, at least not at a high level of abstraction. The matter is subject to a universal cost-benefit test, one which libertarians, incidentally, are not well placed to make. (But neither are doctrinaire socialists of the workers-should-be-in-charge-of-everything camp.)

In an interactive social setting, like a workplace, perfect liberty for everyone is impossible. More liberty for some means more constraints for others. There is no alternative to some sort of political process that balances the benefits of affording more liberty to A against the costs to B.

Start with a useful, paradigmatic case, sexual harassment. In the absence of any constraint on employers, they are free to demand sex in return for the worker not being fired. This infringes on the freedom of workers. But a rule against sexual harassment also infringes on the freedom of the boss. In some cases this could be unfortunate: there must be circumstances in which the lost freedom to try to start a sexual relationship is valuable. (A useful sexual harassment rule cannot require an explicit threat, of course, so it will make some advances at least potentially illegal.) But adding it all up, and considering the massive social problem of women in particular having to face unacceptable choices around sex and work, a rule against sexual harassment is amply justified.

A similar story can be told about racial discrimination. America has a long history of vicious discrimination at work and just about everywhere else, and the Civil Rights Act was a victory for elementary justice. Nevertheless, there is a cost. Suppose I have a company and Fred applies for a job. I despise Fred and consider him deceitful, unreliable and just real bad karma. But if Fred is black, it is much more difficult for me to prevent him from being hired. If the law permits a robust Fred defense, then actual racists will use it to keep any and all blacks out. On balance, in a society with such a history of racism, the benefits of civil rights statutes outweigh their costs.

Peeing? My instant response is that it is very painful, especially for some people, to have to wait to pee, and so the cost of allowing employers to set peeing rules unilaterally is great, much greater than the cost to the enterprise under most circumstances. But should airplane pilots have to wait to pee until a copilot can take over? I hope so. There the calculus comes out differently.

And so on down the line. There is no general principle about who should have the freedom to do whatever they want in a social situation; it depends on a balancing test. The problem in the US is that labor is so institutionally weak in most parts of the economy that a massive invisible thumb weighs down the employer’s side of the scale.

The only plausible libertarian position I can see is this one: the employment relationship is voluntary, so there can be no such thing as employer tyranny in principle. Rather than argue against it (which I would be happy to do), I think it is enough to ask, so what about the sex-or-you’re-fired business? If employment is a truly, completely voluntary relationship, getting fired is no big deal. If you want the job enough to sleep with the boss, that’s your decision. And the same goes for dangerous work, long hours, child labor, the whole nine yards. That’s consistent. But once you allow for an infringement, like rules against sexual harassment or racial discrimination, you have to explain why the rule doesn’t always hold. And then, like it or not, you are in the world of balancing.

Postscript: It’s important to remember that, when freedom for some goes up against freedom for others, the costs to those whose freedom ends up being diminished does not cancel out. It remains and should be acknowledged. In my mind there is no contradiction whatsoever between being in favor of a freedom-reallocating rule, like the ban on sexual harassment, and sympathizing with those who have lost something that, in some way, diminishes our world. Social theory should be generous. (This is also in Dewey.)

3 comments:

John Gray argued, in Two Faces of Liberalism, that conflicts between rival freedoms cannot be resolved without making judgements of value. There can be no morally neutral calculus. So, yes, the tradeoffs of one liberty against another should be acknowledged, which is why Gray included this quote from Isaiah Berlin:

"If the claims of two (or more than two) types of liberty prove incompatible in a particular case, and if this is an instance of the clash of values at once absolute and incommensurable, it is better to face this intellectually uncomfortable fact than to ignore it, or automatically attribute it to some deficiency on our part which could be eliminated by an increase in skill or knowledge; or, what is worse still, suppress one of the competing values altogether by pretending it is identical with its rival--and so end by distorting both."

As for the claim that because a choice was made, there was no coercion, I refuse to pretend that is anything but incoherent. Here's why: